Under the Home Office’s Nationality Instructions, EEA Nationals resident in the United Kingdom since 2 October 2000 were treated as being “settled”, meaning that EEA National children born in the United Kingdom would automatically be considered to be British for the purposes of the British Nationality Act 1981. The ruling in Capparrelli (EEA Nationals – British Nationality)  UKUT 162 (IAC) now suggests that this Home Office policy is wrong, and that EEA National children who have been recognised as British Nationals under the policy are in fact not British.
EEA National Children: Background of Capparrelli (EEA Nationals – British Nationality) Case
The Appellant, Capparrelli, was born in the United Kingdom in 1986 to Italian parents, who subsequently married after his birth. The family lived in Germany from 1989 to 1997, after which the Appellant lived continuously in the United Kingdom. It was found that the Appellant’s parents were both ordinarily resident in the United Kingdom at the time of his birth, and that he had been resident in the United Kingdom from the period of 1997 to 2010 without any unlawful breaks. With respect to the Home Office’s Nationality Instructions regarding EEA National children, and in the view of the First Tier Tribunal, the Appellant was a British citizen.
Between 2004 and 2012, the Appellant was convicted of a series of criminal offences, mainly offences against the person and breaches of community orders. In 2011, the Appellant was sentenced to two years in prison having been convicted of assault occasioning actual bodily harm, criminal damage and harassment. The Appellant was then convicted of rape in 2012, which led to the Secretary of State issuing a deportation order. The Appellant appealed this decision on the grounds that he was in fact British, and the deportation order was overturned by the First Tier Tribunal. The Home Office challenged this decision, and the Upper Tribunal found in their favour; despite seemingly meeting the requirements in the Nationality Instructions, it was held that the Appellant was not in fact British, and that he could indeed be deported.
EEA National Children: The Grounds for Decision in the Capparrelli (EEA Nationals – British Nationality) Case
The decision was ultimately made on the basis that the Home Office’s Nationality Instructions policy was not able to supersede the statutes of the British Nationality Act 1981, and that the wording of those statutes does not refer to EU Freedom of Movement – under which the Appellant’s parents were settled in the United Kingdom. When making reference to person settled in the United Kingdom, section 1(1) the British Nationality Act 1981 states that:
“Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a British overseas territory are references to his being ordinarily resident in the United Kingdom or, as the case may be, in the territory without being subject under the immigration laws to the restriction on the period for which he may remain.” (Emphasis added)
The Judge in the Capparrelli case held that the phrase ‘immigration laws’ did not refer to EU Freedom of Movement, and that the law to which the phrase ‘immigration laws’ referred ought, in fact, to be confined to laws made by the Parliament of the United Kingdom. In the Judge’s view, there are no clear words in the statute to the effect that the meaning of ‘immigration laws’ ought to be extended to include the provisions of EU law. The Judge held, therefore, that the Appellant’s parents were not considered to have been ordinarily resident in the United Kingdom, and the Appellant was therefore able to be deported as he was not a British citizen.
The Impact on EEA National Children
The immediate impact on EEA National children who were born in the United Kingdom before 2 October 2000 is whether they will be able to retain their British citizenship, as the decision in the Capparrelli case would appear to invalidate their status. The other potential impact on EEA National children born in the United Kingdom is if neither of their parents was British or settled in the United Kingdom at the time of birth. It is possible that these children may be able to retain their British citizenship, but this is still far from a certainty.
It is not only EEA National children whose status is in question due to the decision. It can be inferred from the judgment that all Residence in the United Kingdom under EU law is at risk of being invalidated. Permanent Residence, for example, is a result of EU law, and has not been made by the Parliament of the United Kingdom; should the decision in Capparrelli be upheld, then all Permanent Residence and Naturalisation applications would be invalidated, causing chaos to the lives of thousands. Clearly, upholding the decision in Capparrelli is not something that will be taken lightly.
The Upper Tribunal Decision can be found at: Capparrelli (EEA Nationals – British Nationality) LEXVISA Immigration Solicitors London.
Using Legal Representation to Apply for British Citizenship as the Child of an EEA National Settled in the United Kingdom
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to apply for British Citizenship as the child of an EEA National settled in the United Kingdom.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully Apply for British Citizenship as an EEA National Settled in the United Kingdom
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02071830570 or complete our contact form.